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G. Thüsing and G. Forst
respectively “the public interest” exactly mean? On the one hand, good faith/public interest may relate to the motivation of the whistleblower, the relevance of which we are going to investigate in the next chapter (see below at section “Is the motivation of the whistleblower relevant?”). In the context of misapprehension, a whistleblower lacks good faith/public interest if he reports false information although he should have known better. This does not generally preclude the erroneous reporting of false information from the scope of whistleblower protection, but it obliges potential whistleblowers to consider whether their allegations actually are correct. The difficulty now is to determine what a whistleblower must do to yield protection. The jurisdictions we surveyed use different criteria to draw a separation line, but the effect is comparable: In Brazil and Germany for instance, a whistleblower must not act intentionally (i.e. give false information away knowingly), but he may lose protection even if he only acts reckless or thoughtless.68 Similarly, a whistleblower loses protection in Italy if he gives away false information because of gross negligence on his part.69 Japan and the UK require the whistleblower to act in a “reasonable belief”70 that the information he relays is actually true respectively in the public interest. South Korean legislation takes a similar position, although mere negligence seems to suffice to deny a whistleblower protection in this country. The ECtHR in the Heinisch case somewhat cryptic held that a whistleblower “who chooses to disclose information must carefully verify, to the extent permitted by the circumstances, that it is accurate and reliable.”71
Is the Motivation of the Whistleblower Relevant? Closely linked with, yet distinguishable from the “good faith requirement” is the motivation of the whistleblower. If a whistleblower tells the truth – not because he wants to stop a wrongdoing, but to harm the perpetrator for personal reasons (e.g. envy or hate) – should the law protect him? Only very few countries declare the motivation of a whistleblower as being irrelevant for the level of protection granted (Austria, Brazil and Belgium [public sector]). Most of the other jurisdictions surveyed take the motivation of a whistleblower into consideration. In many jurisdictions, the motivation of a whistleblower is considered in establishing whether he acted in “good faith” (Belgium [private sector], Canada, Croatia, France, Italy, Japan, Malta, Poland, Portugal, Romania, Slovenia, Singapore, South Korea) respectively in “the public interest” (UK, since 2013). Motives recognised as harmful to whistleblower protection are, for instance, a striving for personal gain (Malta, South Korea), revenge (Portugal) or maliciousness 68
cf. Federal Constitutional Court, case 1 BvR 2049/00, Judgement of 2 July 2001. Country Report Italy II, p. 6 f. 70 Country Report Japan, p. 3; Country Report UK, p. 4. 71 ECtHR, No. 28274/08, Case Heinisch v Germany, Judgement (Chamber) of 21 July 2011, para. 67. 69
